Regulators Still Mum on Details of Final Hair Testing Rule

Hair testing is conducted. (SandraMatic/Getty Images)

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A highly anticipated federal rulemaking that would permit carriers to drug test drivers using hair samples continues to slog its way through the regulatory process, nearly six years after it was mandated by Congress and two years since it was first formally proposed.

It’s still unclear just when regulators will publish a final rule, according to Ron Flegel, chairman of the federal drug testing advisory board charged with researching and drawing up the rule for the U.S. Substance Abuse and Mental Health Services Administration, and ultimately the U.S. Department of Health and Human Services.

There seems to be little optimism among those closely observing the HHS regulatory process that the rule will be finalized anytime soon. Public comments from the trucking industry were overwhelmingly negative regarding the September 2020 proposed rule since it did not allow hair testing to be a “stand-alone” test. The proposed rule would permit carriers to test employees or prospective employees using hair samples, but positive test results would still need to be validated with a subsequent urine test.

Drug testing advisory board members discussed the draft of a possible superseding rule at a recent closed meeting, and have remained mum on what it looks like, or when it might get the stamp of approval from the White House Office of Management and Budget. “It will be OMB’s final decision, so it’s very difficult to put a timeline on it,” Flegel told Transport Topics.

Horvath

“Over the past few years, Congress placed significant pressure on HHS to finalize guidelines that would allow hair testing to be utilized to meet federal drug testing requirements,” Dan Horvath, vice president for safety policy for American Trucking Associations, told the board at its June 21 meeting. “This included congressional letters, report language and inquiries during committee hearings.”

The option of using hair samples for federal drug tests was mandated by the FAST Act, signed into law in December 2015.

Horvath said the 2020 HHS proposed guidelines for hair testing “fall woefully short of the congressional intent in the FAST Act, and fail to empower the industry to utilize this proven safety tool.”

Horvath added, “Because the detection window for hair testing is significantly larger than the detection windows for alternative testing methods, HHS’ proposal could reverse an estimated 89% of positive pre-employment hair test results and would undermine the cost-benefit for motor carriers to adopt hair testing.”

Meanwhile trucking’s patience is growing thin.

Woodruff

“We’re all frustrated by having to lobby Congress to require them to do it,” Greer Woodruff, senior vice president of Safety, Security & Driver Personnel at J.B. Hunt Transport, told TT.

With 37,000 employees, J.B. Hunt has been hair testing drivers and prospective drivers since 2006.

In public testimony at the June 21 board meeting, Woodruff said as of the end of March that 191,972 company drivers have submitted to both a urinalysis and a hair test.

“Our experience clearly shows that a hair drug test is more reliable and accurate at identifying regular drug use than a urinalysis,” Woodruff said. “For example, of the 7,159 applicants who have tested positive for drug use with a hair test, nine out of 10 passed their urinalysis. Over the past 15 years J.B. Hunt has had zero cases challenging the results of a hair test.”

The drug testing advisory board has publicly said that some of the delay has been due to concerns about external contamination of hair samples and the potential of racial bias.

But Woodruff said that drug testing labs have a protocol to wash hair before testing for the presence of drugs to clear up contamination.

“We think that the issue of external contamination can be addressed through protocols,” Woodruff said.

He added that J.B. Hunt is aware of the concerns about the potential racial bias issue, and has looked at a number of studies that have concluded that there is no racial bias in hair testing. “It’s an issue that we’ve looked at for 20 years and the truth is there’s hardly any research that we can find that says that there is,” Woodruff said.

Horvath agreed. “HHS’ proposed guidelines cite concerns about the color, contamination and texture of an individual’s hair but do not provide evidence that such concerns reduce the accuracy of hair testing results.”